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Uncertified Zoning Board Record is Not Fatal to Defense of Article 78 Proceeding

The Appellate Division overturned the lower court reversal of a zoning board of appeals (ZBA) decision for failure to certify the record filed in response to an Article 78 proceeding. In Matter of Robert E. Haveli Revocable Trust v.Zoning Board of Appeals of the Village of Monroe, the Appellate Division found that the lower court was in error by reversing the ZBA merely because the record of proceedings filed with the court was not certified.

“Since there was no allegation or indication that a substantial right of the petitioner was prejudiced by the lack of a certification, the Supreme Court should have disregarded the defect, and decided the matter on the merits (see CPLR 2001…”

The Court then went on to decide the merits of the case which involved a question of whether the use proposed by the petitioner was a permitted use or, as determined by the ZBA, a conditional use. The Petitioner proposed to operate a business offering tire sales and service. The schedule of uses listed retail sales and automotive repairs as a permitted use but sale and service of tires as a conditional (special permit) use. The Court noted the ordinance provides that in case of a conflict the more restrictive provisions govern and held:

“‘A statute such as a zoning ordinance must be construed as a whole, reading all of its parts together, all of which should be harmonized to ascertain legislative intent, and it should be given its plain meaning, avoiding a construction that renders superfluous any language in the ordinance’…. Construing the Zoning Code with its schedules as a whole, it provides that tire sales and related services are conditional uses.”

Steven Silverberg